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PostPosted: Thu Feb 08, 2001 7:51 pm 
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Location: Framingham, MA USA
Scenario:

A couple of guys get together for a beer at a pub close to their dojo when they finished a class at the dojo.

They are having a little animated fun, and demonstrate how they interpret a block against a strike, all in the view of patrons.

A local yokel walks toward the bar and begins to get rather close and stares and glares at them.

When the yokel doesn't leave in a few minutes, one of the MAs gets off of the bar stool and approaches the yokel, and while glaring at him does a combination of kicks and strikes aimed at the yokel, but at least falling short of him by four feet.

Just then the police arrive after a call by nervous bartender Joe allerted them, and they see the little demo by the MA.

Police approach the yokel, a known town idiot, and ask him if he was all right.

Yokel says "that guy scared me".

Can the MA be charged with any kind of assault?

If so what type, and under what cicumstances can an incident like this result in criminal prosecution?

If you pursue this thread just to make things interesting, I will relate the law as it is set forth in Massachusetts


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PostPosted: Thu Feb 08, 2001 8:04 pm 
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I can't wait to see where you're going with this one! Especially given a few recent cases in Massachusetts!


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PostPosted: Thu Feb 08, 2001 8:21 pm 
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First of the if he is charged with anything it should be Mopery.He should also be prohibited from aver watching another MA movie for the rest of his natural life. I used to beat that guy up in grammer school I think...sorry...

Anyway, in Florida, the definition of assult is "the intentional, unlawful threat by word or act to do violence to a person, coupled with the ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is iminent." Can't argue that, it's in the book.

Now the question was, can jerky be charged? The answer is yes at least in Florida, where the temp. is a comfortable 75 deg. today with no snow in the forcast. If the police wanted to they may even charge him with aggravated assult. Which is assult with a deadly weapon without intent to kill. It would be a stretch but I guess it could happen.

In any event I hope I have deeply offended and shamed anyone who has ever done this.

Thank you
THAT IS ALL

------------------
You can't fight if my thumb is in your eye.

talleyuechi@earthlink.net


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PostPosted: Thu Feb 08, 2001 9:34 pm 
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Talley-san,

The laws are essentially the same in Massachusetts and a few other States I know about...


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PostPosted: Thu Feb 08, 2001 10:07 pm 
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Location: Halifax, NS Canada
Commit assault? You betcha (at least according to the Criminal Code of Canada) - "A person commits an assault when he attempts or threatens by an act or a gesture to apply force to another person if he has or causes that other person to believe upon reasonable grounds that he has present ability to affect his purpose". Also demonstrated very poor judgement! Image

[This message has been edited by Mary S (edited February 08, 2001).]


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PostPosted: Thu Feb 08, 2001 10:45 pm 
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I bet a lot of folk out there figure the Martial Artist was just having a bit of fun. Some of us may have actually done this before. Count us lucky, because we were in fact, breaking the law!

I was talking with John Thurston about something similar, but where a gun was involved. I might have a license to carry a conceiled weapon, but I cannot pull it out, even in a playful (read stupid) manner.

The law is very clear on this.

How about the youngster, who believed he was being threatened by bullies. . . grabbing a antique, non-working rifle (I think) to scare the kids off. He was arrested and being charged with a crime. (Al, please elaborate as my info is memory of a newscast I was half watchin/listening.

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GEM


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PostPosted: Fri Feb 09, 2001 1:44 am 
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Mary cheats. She works in a law office. Image

And so do I. Image

In Counselor Alan K's scenario, our MA could be charged with Common Law Assault - if we were still under the British/American common law.

{We are not; common law has been codified into or replaced by statutes and ordinances almost everywhere; some places (like Louisiana) had a different tradition, such as Napoleonic Code. But I digress Image}

Assault under the common law was the intentional placing of a person in fear of an imminent battery, and could be achieved in two different ways:

1) Attempt a battery unsuccessfully, with the person being aware thereof and frightened thereby (swing at his face and miss).

{Note that his fright Image is a necessary element. Were you to swing at his head from behind and miss, under common law it was not an assault - you have not put him in fear.}

2) Take the steps and threats and be in the position to carry out a battery upon his person.

{Under this section a threat made from a block away is also not an assault; no immediacy, no imminence.}

An argument could be made that the MA being 4 feet away is sufficient to keep it from being an assault; but an argument could be made based on the Tueller drill/20 foot principle that it was immediate and imminent.

student

[This message has been edited by student (edited February 08, 2001).]


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PostPosted: Mon Feb 12, 2001 2:50 pm 
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Your replies have been excellent and in many ways right in accordance with Massachusetts Law.

In Massachusetts, Simple Assault is non-statutory (non-codified) and was and is determined by the "Common Law". Common law ( for those not familiar as to who law evolves) meant that it was developed by what the courts have determined is the law of the realm.

As an example I will cite the names of 3 cases, without the additional junk of where the cases can be found.

Commonwealth v. Webster (1850)
Commonwealth v. Slaney (1962)
Saleme v. Commonwealth (1976) involving an attempt or threat to do bodily harm.

Threats or attempts to do bodily harm (battery) to another by force or violence, are key elements, the principal element being overt, threatening or menacing gestures.

You can see how in the senario presented in
the topic where the MA's little demonstration, made with the good intent of preventing an escaltion, might be a crime, nevertheless.

Words alone, without an overt act, will not be the crime of simple assault.

We have cases of conviction based upon the above overt acts without the necessity to prove that the victim was in fear or was apprehensive.

Even if you prove the MA's were at least four feet or more away, this is not a defense, because the defendant's inability or his or his state of mind in fact was motivated by his desire to avoid conflict!

The law was evolved for the public interest to preserve the peace and therefore homes in on the overt acts and its effect on the public order or peace. The defendant's mind set is not an issue.

This also involves the issue of some geek (not the venerated computer type) waiving an unloaded gun at a person or a crowd; this guy is automatically guilty, and this will include the more serious charge of aggravated assult!

Alan K


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PostPosted: Mon Feb 12, 2001 2:55 pm 
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Ah.... I await my gold star!! Image


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PostPosted: Sun Feb 18, 2001 12:55 am 
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You cut somebody off inadvertently.

The irate driver gets out of his car at a red light, walks over to your car, points his right index finger at you, with the thumb straight up [ to mimic a gun] and yells " I am going to shoot you, M** F** _"

Is he guilty of assault?

------------------
Van Canna


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PostPosted: Sun Feb 18, 2001 3:37 am 
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At common law, not yet, Van.

While he's demonstrated ill will, he has not yet demonstrated the immediate capacity to carry out his threat (No gun showing; I don't care what caliber finger he had!) of shooting you. Unless you are put in fear of an immediately imminent battery, it doesn't qualify as an assault, IMHO.

Now, when he makes a pocket play....

student

[This message has been edited by student (edited February 17, 2001).]


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PostPosted: Sun Feb 18, 2001 7:02 pm 
Not guilty maybe, but dead meat if the other dude has a handgun and accidentally pulled the trigger because he thought the one with the phony pistol was going to shoot him.


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PostPosted: Mon Feb 19, 2001 6:46 pm 
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<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by student:

While he's demonstrated ill will, he has not yet demonstrated the immediate capacity to carry out his threat (No gun showing; I don't care what caliber finger he had!) of shooting you.<HR></BLOCKQUOTE>

Using the criteria of reasonable fear of imminent death or grave bodily harm is only part of the equation. The attacker must have motive, will and the means to carry it out. He has the motive... you cut him off. he has the desire... he demonstrate that by his actions. He doesn't (yet) demonstrate the means to carry out his threat. being licensed to carry, I'd certainly be in condition Orange+ at this point... perhaps condition Red depending on other factors, but it certainly hasn't reached condition Black.

<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote
Quote:
Unless you are put in fear of an immediately imminent battery, it doesn't qualify as an assault, IMHO.


He hasn't met the criteria yet, since there isn't an obvious means for carrying out the threat. However, if the perp is bigger, badder, meaner than you are there is the doctrine of "disparity of force" which says that his/her hands could be considered the means. This pushes the criteria even further into the "reasonable man/woman" doctrine. (And I've actually heard a lawyer once try to make the argument that "there is no such thing as a 'reasonable woman'"! Image The court didn't buy it and neither do I... Image ) Basically that means "What would a 'reasonable person' have believed/felt in the same situation"? Would that "reasonable person" have also felt in imminent danger of death or grave bodily harm? Many cases have hinged on that argument alone... and been found both ways based on that criteria.

<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote
Quote:
Now, when he makes a pocket play....


While "making a pocket play" would definitely escalate the situation, you can't say definitively. Perhaps this person has felt that you are/were the danger on the road and is reaching for a cellphone to call the police now that he has you stopped. Personally, I wouldn't take that chance, but it's food for thought and something to consider before you actually pull the trigger. And that's why the old adage of "never draw a weapon unless you're going to use it" has been changed to "never draw a weapon unless you are ready and willing to use it". Something on the order of 95-99% of defensive uses of firearms never require a shot. In "the old days" it was important to be able to draw, acquire the target and fire as fast as possible. While that is still an important consideration, it is also important to realize that you are much more likely these days to hold an attacker at gun-point while waiting on the authorities to arrive than you are to actually have to fire on an attacker.

And finally, who hasn't realized by now that pulling directly up behind another car at a stop-light isn't very good from a tactical perspective? Always leave yourself an out... If I was first in line or could manuver (which you can if you leave room) out, I'd take running a red-light over confronting the irate jerk. Naturally, you can't just blow through a red-light, but with lights flashing and horn honking, I'd get the heck away from someone coming to threaten me!


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PostPosted: Wed Feb 21, 2001 7:41 pm 
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<BLOCKQUOTE><font size="1" face="Verdana, Arial">quote:</font><HR>Originally posted by Alan K:

A & B with a dangerous weapon does not require the victim to be put in actual fear.<HR></BLOCKQUOTE>

Not fear, but a "reasonable belief of imminent death or grave bodily harm"... Wouldn't you agree?

OTOH, in Commonwealth vs. Hamilton (2001), the assaulting truck driver was able to mitigate his agressive actions by claiming (where no prior claim had been made) that he was "in fear for his life"... As a result the (politically-motivated) ADA ultimately dropped the charges against the truck driver (against the wishes of at least one judge) and win a judgement of ADW against Mrs. Hamilton (for merely placing her legally owned and registered pistol where 1) it was more easily accessible for self-defense and 2) the truck driver could merely see the still-holstered firearm!) Both her conviction and his charges being dropped hinged directly on his changing his testimony (from two previous hearings AND a written/sworn deposition) to state that he "was in fear for his life".

So, while I understand the cases you've selected, I must point out that you won't be charged with either ADW or "brandishing" for merely walking down the street openly carrying a baseball bat (even one of those nasty, imported, aluminum, high-strength "assault" baseball bats), whereas you will be charged with one or the other of those offenses if you merely accidently have the grip of your legally owned, licensed and registered personal defensive pistol become momentarily visible in certain company!


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PostPosted: Thu Feb 22, 2001 5:58 am 
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In these discussions we have postings quoting the law with reference to A & B with a dangerous weapon, with emphasis on guns, concealed or displayed.

In Massachusetts, as I have quoted previously, A & B with a dangerous weapon is possible not only with the usual guns and edged weapons or clubs or saps, but in addtion thereto, the use of neutral objects (a hammer, wrench, tire iron etc.)

This of course depends upon how such object is used or threatened.

(Com. v. Farrell 78 N.E. 2d 702 (1948) a lit cigarette Com. v. Tarrant 326 N.E. 2d 710 (1975) a German Shepherd dog.)

The test is whther the object has apparent ability to inflict harm, if used as threatened. What is in the defendant's mind is not material.

There are standards (tests) to determine what constitutes dangerous weapons.
1. Nature size and shape of the object
2. How it is used or displayed
3. Does the display of the object reasonably create a fear in the victim.
4. Did the defendant intend to provoke fear in the victim.

For neutral objects, the test is their ability to instill fear by objective standards and not the victim's subjective apprehension. (Com. v. Tarrant 326 N.E. 2d 710 1975)

A & B with a dangerous weapon does not require the victim to be put in actual fear.

Alan K


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